Monthly Archives: May 2018

Spring issue of the Judicial Conduct Reporter

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The spring issue of the Judicial Conduct Reporter has been published and is now available on-line.  It has articles on habitual tardiness, mixing family and politics at home, including when a family member is a candidate and when a family member supports a candidate, and ethical guidelines for members of judicial conduct commissions.  It also has summaries of recent cases in which judges were disciplined for banning a clerk from the courthouse (Indiana), stalking and harassing (Louisiana), independent investigation in a harassment case (Nevada), ex parte information in a domestic violence case (New York), commenting to a reporter and a discourteous remark in a domestic violence case (California), and a $4 billion bond (Texas).

The Judicial Conduct Reporter is published electronically, and an index and current and past issues of the Reporter are indexed and available on-line as a free download.  You can sign up to receive notice when a new issue is available.

On-line complaints

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Although a form is not required to file a complaint against a judge in most states, using a form increases the chances a judicial conduct commission will get the information it needs to evaluate whether an investigation is justified.  Most judicial conduct commissions have complaint forms on their web-sites, many the fillable PDF type, that can be mailed, faxed, or, in some states, e-mailed to the commission.

n addition, 8 judicial conduct commissions now allow complaints to be filed on-line.  Those 8, linked to the on-line forms, are:

In response to a recent inquiry, the commissions recommended the on-line process, noting no confidentiality or security breaches or any more problems than with written complaints.  One commission stated that about half of the complaints it receives now come through its on-line portal, and another said that 3/4 of the complaints on its next agenda had been filed electronically.  Several reported an increase in the number of complaints since they added the on-line option but concluded that increase was outweighed by the benefits, such as more legible complaints, reduced costs for processing, and more comprehensive information.  One commission noted that, “Members of the public seem to appreciate the ease of use and accessibility of the online form,” and another stated, “it is convenient for complainants and is not an overall problem.  It’s the way of the future and nice to deal with less paper.”

The Center for Judicial Ethics has links to the web-sites of all judicial conduct commissions.

Throwback Thursday  

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5 years ago this month:

  • The Arizona Commission on Judicial Conduct publicly reprimanded a judge for describing a pro se criminal defendant’s legal arguments as “stupid” and “screwy” and stating to him, “If you don’t like it, move to Mexico.” Holt, Order (Arizona Commission on Judicial Conduct May 31, 2013).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for (1) directing that a subpoena duces tecum be issued to provide an audio tape recording of a traffic stop and documentation, reviewing the tapes, and relying on them to deny a motion to suppress and (2) directing his case coordinator to contact another court to inquire about a prior conviction and proof of representation. Letter of Reprimand to Crow (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly censured a judge for filing a complaint with the Committee on Professional Conduct against a public defender after the public defender had filed a complaint against him with the Commission. Letter of Censure to Crow (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly reprimanded a judge for calling a criminal defendant a racist and saying “there goes another angry black man” as the defendant left the courtroom. Letter of Reprimand to Batton (Arkansas Judicial Discipline and Disability Commission May 17, 2013).
  • Pursuant to the judge’s agreement, the Georgia Judicial Qualifications Commission disclosed that it had privately reprimanded a judge but not disclose the content of the reprimand; the report of disposition notes that the Commission had received complaints about inappropriate campaign activities by the judge on behalf of his son, a candidate for chief magistrate judge. In re Smith, Report of Disposition (Georgia Judicial Qualifications Commission May 21, 2013).
  • Accepting a recommendation of the Judicial Tenure Commission based on stipulated facts, the Michigan Supreme Court suspended a judge from office for 30 days without pay and publicly censured him for (1) remanding an attorney he had found in contempt to the custody of the sheriff’s department without providing direction as to how they should transport him and (2) making comments to the attorney that were improper and failing to be patient and dignified toward the attorney. In re Post, 830 N.W.2d 365 (Michigan 2013).
  • Based on a stipulation, the Nevada Commission on Judicial Discipline publicly reprimanded a judge for taking possession of 2 pieces of heavy equipment that he knew were subject to a court order in a divorce case that prohibited the ex-husband, who was dating the judge’s court clerk, from disposing of community property and making misrepresentations to the Commission investigator. In the Matter of Graham, Findings of Fact, Conclusions of Law, Imposition of Discipline (Nevada Commission on Judicial Discipline May 17, 2013).
  • Adopting the Judicial Conduct Commission’s findings, conclusions, and proposed sanctions, based on stipulations, the Utah Supreme Court publicly censured a judge for exceeding the statutory salary cap for justice court judges employed by more than 1 municipality; the Court also ordered him to repay the excess salary. In re Christensen, 304 P.3d 835 (Utah 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a judge for (1) signing bench warrants in cases in which he had been disqualified and (2) making a comment that created the appearance he had relied on unsolicited factual assertions from a court clerk when imposing a sentence and revoking bail without disclosing the ex parte communications. In re Porter, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 10, 2013).
  • Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished a former judge who identified himself as a judge to a law enforcement officer and mentioned several times that he had been with another judge earlier in the evening. In re Ryan, Stipulation, Agreement, and Order (Washington State Commission on Judicial Conduct May 10, 2013).

Recent cases

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  • The California Commission on Judicial Performance publicly admonished a judge for making public comments to a reporter about a domestic violence case and making a discourteous remark about the victim in court. In the Matter Concerning Lord, Decision and order (California Commission on Judicial Performance April 11, 2018).
  • Based on the findings of a referee, the New York State Commission on Judicial Conduct removed a judge from office for (1) in 2 cases, being discourteous to lawyers who responded “okay” to their witnesses’ answers, striking the witnesses’ testimony, and dismissing the cases; (2) being discourteous to lawyers in 3 other cases; (3) sua sponte awarding “fees” to counsel in 9 civil actions without affording an opportunity to be heard; and (4) failing to cooperate with the Commission’s investigation. In the Matter of the O’Connor, Determination (New York State Commission on Judicial Conduct March 30, 2018), review requested.
  • Based on the findings of a referee following a hearing, the New York State Commission on Judicial Conduct removed a judge for (1) operating a vehicle while under the influence of alcohol, resulting in her conviction for driving while intoxicated; (2) asserting her judicial position to try to avoid the consequences of her arrest; (3) repeatedly and willfully violating the terms of her conditional discharge; (4) arraigning a former client; and (5) making discourteous, undignified, or otherwise inappropriate comments while presiding over 3 criminal matters. In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018), review requested.
  • Accepting a stipulation based on the judge’s resignation and agreement not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct closed its investigation of allegations that a judge, in an eviction proceeding, signed a warrant of eviction without holding a hearing and engaged in ex parte communications and other misconduct. In the Matter of LaFave, Decision and order (New York State Commission on Judicial Conduct April 12, 2018).
  • Accepting a stipulation based on the judge’s resignation and affirmation not to seek or accept judicial office in the future, the New York State Commission on Judicial Conduct closed its investigation of a judge facing state felony charges based on allegations he and another attorney stole over $1,000,000 from trusts. In the Matter of Sherwood, Decision and order (New York State Commission on Judicial Conduct April 12, 2018).
  • The Texas State Commission on Judicial Conduct publicly reprimanded a judge for (1) hiring a woman with whom he had an intimate relationship and making inappropriate comments about her during office hours and (2) issuing an amended judgment without providing the parties with notice and setting an appeal bond that was over the amount specified by rule. Public Reprimand of Jasso and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for (1) referring to a man who was the subject of a guardianship proceedings as “Mr. Maggot,” “Maggot Man,” or words to that effect; (2) comparing the assessed IQ of a woman who was the subject of a guardianship proceeding to the IQ of a pen; and (3) interacting with litigants in 3 guardianship cases in a manner that reasonably led them to feel disrespected, demeaned, and frustrated. Public Admonition of Cross and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for stating “this is a redneck court.” Public Warning of Lee and Order of Additional Education (Texas State Commission on Judicial Conduct April 18, 2018).

 

Throwback Thursday

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10 years ago this month:

  • Pursuant to the judge’s agreement, the Arkansas Judicial Discipline and Disability Commission publicly admonished a judge for giving the appearance of summarily banishing a defendant from the county. Letter to Wise (Arkansas Judicial Discipline and Disability Commission May 5, 2008).
  • Based on the judge’s agreement, the Indiana Commission on Judicial Qualifications publicly admonished a judge who had pled guilty to public intoxication after being arrested when a police officer observed him outside his car near the interstate. Public Admonition of Currie (Indiana Commission on Judicial Qualifications May 27, 2008).
  • Based on the recommendation of the Commission on Judicial Disabilities, the Maryland Court of Appeals suspended a judge for 30 days without pay for a pattern of inappropriate demeanor and comments. In re Lamdin, 948 A.2d 54 (Maryland May 2008).
  • Based on an agreed statement of facts and joint recommendation, the New York State Commission on Judicial Conduct publicly censured a judge for holding litigants in 3 cases in summary contempt without complying with statutory requirements. In the Matter or Griffin, Determination (New York State Commission on Judicial Conduct May 16, 2008).
  • The North Carolina Judicial Standards Commission publicly reprimanded a judge who had entered an Alford plea to impaired driving. In re Adkins, Public Reprimand (North Carolina Judicial Standards Commission May 9, 2008).
  • Based on a consent-to-discipline agreement, the Ohio Supreme Court publicly reprimanded a judge for allowing 6 civil cases to languish in his court for an inordinate amount of time. Disciplinary Counsel v. Sargeant, 889 N.E.2d 96 (Ohio 2008).
  • Adopting the recommendations of the hearing panel of the Commission on Judicial Conduct, the South Carolina Supreme Court publicly reprimanded a former magistrate for (1) proposing that a court employee obtain incriminating evidence against another magistrate by videotaping herself engaged in sexual relations with the magistrate and (2) using a racial epithet in a conversation with another court employee to refer to men that a court clerk was dating; the Court also ordered that the former judge be prohibited from seeking or accepting any judicial position in the state without its express permission. In the Matter of Hutchins, 661 S.E.2d 343 (South Carolina 2008).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for a comment that could easily be misinterpreted as racist and an unsolicited, coercive, and intimidating discussion of the value of a case to encourage settlement that injected race and politics; the Commission also ordered the judge to complete an 8-hour course covering racial sensitivity and diversity. Public Warning of Keis and Order of Additional Education (Texas State Commission on Judicial Conduct May 14, 2008).
  • The Texas State Commission on Judicial Conduct publicly warned a judge for touching an attorney’s buttocks at a Christmas party; the Commission also ordered him to complete an 8-hour course covering gender sensitivity and sexual harassment. Public Warning of Miner and Order of Additional Education (Texas State Commission on Judicial Conduct May 14, 2008).
  • The Texas State Commission on Judicial Conduct publicly admonished a judge for a 20-year practice of refusing to accept eviction filings from landlords for part of December. Public Admonition of Geick (Texas State Commission on Judicial Conduct May 5, 2008).
  • Based on a stipulation and joint recommendation, the Wisconsin Supreme Court publicly reprimanded a supreme court justice for presiding, when she was a circuit judge, over 11 cases in which a bank was a party while her husband was a paid director of the bank, without disclosing the relationship or obtaining a waiver of her disqualification. In the Matter of Ziegler, 750 N.W.2d 710 (Wisconsin 2008).

New judges’ failure to disqualify

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In 2 recent cases, 2 new judges were disciplined for failing to disqualify from cases related to their pre-bench representation and making comments while presiding in those cases that created the appearance of impartiality.

In 1 case, the judge had become a judge on January 1, 2015.  On January 21, 2015, James Thomas was brought into her courtroom to be arraigned on a petit larceny charge.  Thomas was at the time on parole supervision for a felony on which the judge had represented him approximately 3 years earlier.

When Thomas entered the judge’s courtroom, he smiled and waved at the judge, who was on the bench.  The judge laughed and disclosed to counsel that Thomas was a former client, adding, “And I like him.”  She then said, “Well, I mean, I can … arraign him … but I’m going to transfer it.”  The judge asked her court clerk, “Can it not go to Johnson, please?”, referring to another judge who would usually get a transferred case.  At the hearing, the judge testified that, if Judge Johnson, who was not very “nice to anyone,” got his case, Thomas would get harsher treatment and a less favorable result.

She then commented from the bench:  “[W]hen … you said the name I’m like, ‘Aw, come on”‘; “He freaking just got out.  I represented him … He just, just got out”; and “Aww, I’m so sad about this.”

The judge read Thomas the charge and assigned him counsel, who entered a plea of not guilty.  The judge told Thomas that it was not appropriate for her to preside over his case.  When he asked why, she replied, “I would love to preside over your case, but I don’t … want any conflicts.”  The judge set a “courtesy” bail at $50, as requested by Thomas’ attorney.  In setting bail, the judge stated that because he was being held, “it really doesn’t matter,” but that because he was being held on bail concurrent to the parole hold, he would be “getting time on these charges.”  When the next case was called, the judge commented, “I totally love him.  I’m so sad that he’s in jail right now.”

The New York State Commission on Judicial Conduct found that the judge’s impartiality could reasonably be questioned, not only because of the prior attorney-client relationship, but because of her evident bias.  The Commission explained:

Even if respondent mistakenly believed that conducting the arraignment was permissible as long as she subsequently transferred the case, her handling of the proceeding, including her repeated expressions of fondness for her former client and her misuse of her judicial position to benefit him, created an unmistakable appearance of favoritism.  Her undisguised attempt to benefit the defendant by asking her clerk not to transfer the case to a particular judge whom respondent viewed as harsh was particularly improper.  The defendant, who was being held on a parole violation arising out of the matter in which respondent had represented him, also benefited from her decision to set a $50 “courtesy” bail, which would give him credit for jail time on the current charge.

The Commission emphasized that, “when a conflict with a party requires disqualification, a judge must recuse at the outset of the case and must not handle an arraignment since arraignments are a significant stage in the criminal proceeding requiring the exercise of discretion . . . .”

The Commission removed the judge for arraigning Thomas; making discourteous, undignified, or otherwise inappropriate comments while presiding over 3 other criminal matters; operating a vehicle while under the influence of alcohol; asserting her judicial position in attempting to avoid the consequences of her arrest; and repeatedly violating the terms of her conditional discharge.  In the Matter of Astacio, Determination (New York State Commission on Judicial Conduct April 23, 2018).

* * *
In the second case, the judge had been sworn into office in January 9, 2017.  On February 22, 2017, she accepted a defendant’s guilty plea, and, on March 8, she sentenced the defendant — even though she had appeared in the same case representing the same defendant at the preliminary hearing on November 8, 2016, while serving as the “attorney of the day.”

During the sentencing hearing, after disclosing that she had represented the defendant at the first hearing, the judge asked whether “either party” had “any problem” with her imposing sentence.  There was no objection.

Before imposing sentence, the judge said, “Well, I actually – I remember [this defendant], and I remember thinking he was different than most of the people that I dealt with when I was defense attorney.  I remember telling the judge that I felt like it was outside of his character for him to do something like this.  In my dealings with him he was a very respectful young man.”  The judge then sentenced the defendant in accordance with the agreed recommendation of the parties.

Based on a stipulation and agreement, the Washington State Commission on Judicial Conduct publicly admonished the judge.  In re O’Rourke, Stipulation, agreement, and order (Washington State Commission on Judicial Conduct March 9, 2018).

In the disciplinary proceedings, the judge stipulated that her comments attesting to the defendant’s character may have reasonably given the impression that she was not impartial even though she followed the agreed recommendation of the parties.

Prior to the disciplinary proceedings, the judge had “mistakenly believed that disclosing her past representation and recusing herself” if requested was sufficient to cure the conflict.  She had done some research on the issue and had spoken to other, more senior, judges, including inquiring informally following a presentation on judicial ethics.”  She had concluded that disclosure was the appropriate remedy based on the limited nature of her prior representation and the potential disruption to the court if she were unable to preside over criminal cases because she had represented virtually every person charged with a crime in the county at their preliminary appearance in 2016.  The Commission noted that others in the local legal community it had contacted in the investigation also had the mistaken belief that the disclosure of prior representation was sufficient.  Noting the “apparent confusion regarding application of this rule,” the Commission clarified that a judge cannot preside over a case in which the judge previously acted as an attorney and that that disqualification cannot be waived.

The code of judicial conduct requires a judge to disqualify when the judge “served as a lawyer in the matter in controversy.”  This Washington code does not allow this disqualification to be waived unlike the model code of judicial conduct and the codes in many other states, but even under those codes, waiver is permitted only if the parties agree, “without participation by the judge or court personnel,” and the agreement is incorporated into the record.

Throwback Thursday

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20 years ago this month:

  • The Indiana Supreme Court permanently enjoined a former judge from seeking judicial office in Indiana; permanently disbarred him from the practice of law; and fined him $100,000 for (1) while serving as a part-time court commissioner, accepting sexual relations with a woman in exchange for his representation of her in the dissolution of her marriage; giving the woman a fake divorce decree; and related misconduct; and (2) after being appointed as a full-time judge pro tempore, continuing to serve and be paid as a part-time commissioner and part-time deputy city attorney and engaging in the private practice of law. In the Matter Edwards, 694 N.E.2d 701 (Indiana 1998).
  • In attorney discipline proceedings, the Ohio Supreme Court permanently disbarred a former judge who had pled guilty to distributing cocaine while a judge. Office of Disciplinary Counsel v. Gallagher, 693 N.E.2d 1078 (Ohio 1998).
  • Accepting a stipulation consenting to the implementation of the findings of fact, conclusions of law, and order of the Judicial Conduct Commission, the Utah Supreme Court publicly reprimanded a judge for telling an attorney that it might not be a good idea for him to practice in her court again. Re Inquiry Concerning Acomb (Utah Supreme Court May 4, 1998).

Including but not limited to sexual harassment

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Under the federal Civil Rights Act, sexual harassment is defined as:

Unwelcome sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature . . . when (1) submission to such conduct is made either explicitly or implicitly a term or condition of an individual’s employment, (2) submission to or rejection of such conduct by an individual is used as the basis for employment decisions affecting such individual, or (3) such conduct has the purpose or effect of unreasonably interfering with an individual’s work performance or creating an intimidating, hostile, or offensive working environment.

However, “[a]lthough undoubtedly all forms of behavior that cross the legal threshold of sexual harassment would constitute judicial misconduct,” a judge’s “offensive interpersonal behavior” does not have to meet the definition of sexual harassment under federal or state law to violate the code of judicial conduct and warrant judicial discipline.  In the Matter of Seaman 627 A.2d 106 (New Jersey 1993).  Accord In re Barr, 13 S.W.3d 525 (Texas Review Tribunal 1998).

For example, the North Dakota Supreme Court rejected a judge’s argument that “concepts of sexual harassment under federal and state laws should govern any assessment of the evidence” in a judicial discipline case.  In the Matter of Corwin, 843 N.W.2d 830 (North Dakota 2014).  Noting “judicial disciplinary proceedings ‘are neither civil nor criminal,’” the Court stated that the code “does not require the establishment of sexual harassment under federal or state law.”  The Court suspended the judge from office for 1 month without pay for conduct toward his court reporter that she reasonably perceived as sexual harassment.

In In re Miera, 426 N.W.2d 850 (Minnesota 1988), the judge had argued that he should not be sanctioned because there had been no findings he had interfered with his court reporter’s employment or created a hostile work environment as required for a claim of sexual harassment under a state statute.  However, the Minnesota Supreme Court stated that the issue was not the judge’s “civil liability for damages but his ethical responsibilities as a judge.”  The Court concluded that the judge’s unsolicited sexual advances toward his court reporter had demonstrated a serious abuse of the power and suspended the judge for 1 year without pay for this and other misconduct.

Similarly, in Commission on  Judicial Performance v. Spencer, 725 So. 2d 171 (Mississippi 1998), the judge had argued that his treatment of the court clerk, 2 deputy clerks, and another judge did not constitute sexual harassment because he was not their supervisor and he had not threatened their jobs or engaged in other reprisals.  However, the Court held that the issue was not whether the judge’s offensive comments met the legal definition of sexual harassment but whether the comments constituted willful misconduct in office and conduct prejudicial to the administration of justice that brings the judicial office into disrepute.  The Court removed the judge for this and other misconduct.

Although prior to 1990 the code of judicial conduct did not expressly refer to bias or harassment, sexual harassment obviously fell within other provisions:  however else it may be characterized, conduct such as inappropriate comments and touching demonstrates a failure to be “patient, dignified, and courteous,” to promote “public confidence in the integrity and impartiality of the judiciary,” and to “observe high standards of conduct.”

In 1990, a prohibition on manifesting bias was added to the American Bar Association Model Code of Judicial Conduct, and a comment to the rule stated that “a judge must refrain from speech, gestures or other conduct that could reasonably be perceived as sexual harassment . . . .”  Rule 2.3(B) of the 2007 model code states that “[a] judge shall not, in the performance of judicial duties, by words or conduct manifest bias or prejudice, or engage in harassment,” including but not limited to harassment based on sex or gender.  Comment 4 to that rule explains that “[s]exual harassment includes but is not limited to sexual advances, requests for sexual favors, and other verbal or physical conduct of a sexual nature that is unwelcome.”